98-000945 Ginnie Springs, Inc. vs. Craig Watson And Department Of Environmental Regulation Status: Closed Recommended Order on Tuesday, February 23, 1999.

Summary: Petitioner proved dairy would provide adequate on-site containment and treatment of nitrates so as to reasonably assure that regulatory standards for nitrates in groundwater would not be violated.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GINNIE SPRINGS, INC., )

)

Petitioner, )

)

vs. ) Case No. 98-0945

)

CRAIG WATSON and )

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondents. )

______________________________)

PROFESSIONAL ASSOCIATION )

OF DIVING INSTRUCTORS, INC., )

and GEORGIA SHEMITZ, )

)

Petitioners, )

)

vs. ) Case No. 98-1070

)

CRAIG WATSON and )

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondents. )

______________________________)

ALACHUA COUNTY, )

)

Petitioner, )

)

vs. ) Case No. 98-1071

)

CRAIG WATSON and )

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondents, )

)

and )

)

SAVE OUR SUWANNEE, INC., and )

GILCHRIST COUNTY, )

)

Intervenors. )

______________________________)

RECOMMENDED ORDER

This matter came on for formal proceeding and hearing before

P. Michael Ruff, duly designated Administrative Law Judge of the

Division of Administrative Hearings. The hearing was conducted

in Gainesville, Florida, on October 12-20, 1998.

APPEARANCES

For Petitioner, Ginnie Springs, Inc.:

Patrice Boyles, Esquire

Post Office Box 1424

Gainesville, Florida 32601

For Petitioners, Professional Association of Diving

Instructors and Georgia Schemitz:

E. Gary Early, Esquire

216 South Monroe Street, Suite 200

Tallahassee, Florida 32301

For Petitioner, Alachua County:

Robert Livingston, IV, Esquire

Post Office Box 2877

Gainesville, Florida 32602

For Intervenor, Save Our Suwanee:

Peter Belmont, Esquire

102 Fareham Place North

St. Petersburg, Florida 33701

For Respondent, Department of Environmental Protection:

T. Andrew Zodrow, Esquire

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

For Respondent, Craig Watson:

Marty Smith, Esquire

Post Office Box 2120

Ocala, Florida 34478

For Intervenor, Gilchrist County:

Samuel Mutch, Esquire

726 Northwest 8th Avenue

Gainesville, Florida 32601

STATEMENT OF THE ISSUE

The issue to be resolved in this proceeding concerns whether

the applicant, Craig Watson, has provided reasonable assurances

in justification of the grant of an Industrial Waste Water

Facility permit for a rotational grazing dairy to be located in

Gilchrist County, Florida, in accordance with Section 403.087,

Florida Statutes, and the applicable rules and policies of the

Department of Environmental Protection. Specifically, it must be

determined whether the applicant has provided reasonable

assurances that the operation of the industrial waste water

facility at issue will comply with the Department's ground water

quality standards and minimum criteria embodied in its rules and

relevant policy, including draft permit conditions governing the

proposed zone of discharge for the project. It must be

determined whether the ground water beyond the proposed zone of

discharge will be contaminated in excess of relevant state

standards and criteria and whether the water quality of the G-II

aquifer beneath the site will be degraded. Concomitantly it must

be decided whether the applicant has provided reasonable

assurances that the proposed project will comply with the

Department's effluent guidelines and policy for dairy operations

as industrial waste water facilities, pursuant to the

Department's policy enacted and implemented pursuant to its rules

for granting and implementing industrial waste water facility

permits, as they relate to dairy operations.

PRELIMINARY STATEMENT

This cause arose upon the submission by the applicant of a

permit application and engineering report to the Respondent,

Department of Environmental Protection (DEP; Department), seeking

authorization to construct and operate a "rotational grazing"

dairy on 511 acres of land owned by the applicant in Gilchrist

County, Florida. Upon review of the proposed project, the

Department noticed the applicant and the public of its intent to

issue an Industrial Waste Water Facility permit to the

Respondent, Craig Watson. The above-named Petitioners filed

Petitions for formal proceedings on February 12, 1998. On or

about September 30, 1998, Gilchrist County filed a Motion to

Intervene in the case and on October 5, 1998, Petitioner-

Intervenor, Save Our Suwannee Inc., (SOS) filed a Motion to

Intervene in the case.

The cause came on for hearing as noticed on the above -

referenced dates at which the Respondents jointly presented the

testimony of Dr. Dale Bottcher, Ph.D., P.E. He was accepted as

an expert in agricultural engineering and dairy waste management.

Dr. Thomas Kwader, Ph.D., P.G., was accepted as an expert in

geology and hydrogeology, in testifying for the Respondents.

Michael Holloway, P.E., testified for the Respondents as an

expert in agricultural engineering and dairy waste management;

John J. Davis, P.G., was accepted as an expert in geology and

hydrogeology, excluding photo linear trace analysis, soils

analysis, ground penetrating radar and geophysics.

Edward Dane Cordova, P.E., was accepted as an expert in

environmental engineering as related to waste water system design

and operation but excluding nutrient balance and management,

uptake and volatilization rates, and ground penetrating radar.

Additionally, the Respondents presented the testimony of fact

witnesses, Vincent A. Seibold, P.E.; William R. Reck, P.E.,

environmental engineer with the Natural Resources Conservation

Service and United State Department of Agriculture; Mark

Bardolph; Craig Watson and Rich Watson.

The Petitioners presented the live testimony of four

witnesses, Robert J. Windshauer, P.G., Curtis D. Pollman, Ph.D.,

Wes Skiles, and Sam B. Upchurch, Ph.D., P.G. Mr. Windshauer was

accepted as an expert in geology, hydrogeology, geophysics and

ground penetrating radar. Dr. Pollman was accepted as an expert

in biogeochemistry, modeling of environmental and biogeochemical

processes and the fate and transport of organic and inorganic

contaminants. Dr. Sam Upchurch was accepted as an expert in

hydrogeology, geophysics, statistics, geochemistry, geology,

analytical modeling, hydrology and ground water monitoring

design.

The Respondents presented a joint composite exhibit (Watson

Joint Exhibit I), which was admitted into evidence. The

Petitioners' exhibits 3, 6, 7, 8, 9, 10, 11, composite exhibit

12-13, composite exhibit 14, 15, 16, composite exhibit 17 and

exhibits 18 through 32, were admitted into evidence. Petitioners

also proffered exhibits 4 and 5 which were excluded from

evidence.

Upon conclusion of the proceeding the parties elected to

obtain a transcript thereof and avail themselves of the right to

submit proposed recommended orders, requesting an extended

briefing schedule. The proposed recommended orders were timely

submitted and have been considered and addressed in the rendition

of this Recommended Order.

FINDINGS OF FACT

1. The Respondent Craig Watson has applied for an

Industrial Waste Water Facility permit to authorize the

construction and operation of an 850-cow, rotational grazing

dairy, with accompanying dairy waste management system, to be

located in Gilchrist County, Florida. The system would be

characterized by ultimate spray application of waste effluent to

pastures or "paddocks" located on a portion of the 511-acre farm

owned by Mr. Watson. The rotational grazing method of dairy

operation is designed to prevent the ground water quality

violations frequently associated with traditional dairy

operationsaditional dairy operations are often characterized

by intensive livestock use areas, which result in denuding of

vegetation and consequent compacting of the soil, which prevents

the effective plant root zone uptake method of treating dairy

waste and waste water for prevention of ground water quality

violations. Such intensive use areas are typically areas around

central milking barns, central feeding and watering troughs, and

other aspects of such operations which tend to concentrate cows

in relatively small areas. The rotational grazing dairy attempts

to avoid such problems by dividing a dairy farm's surface area

into numerous pastures which cows can graze upon with constant

and frequent rotation of cows between such pastures. This avoids

overgrazing or denuding of the cover crop upon which cows graze,

which is so necessary to proper treatment of wastes through root

zone uptake.

2. A rotational grazing dairy is designed to re-cycle cow

manure for use as fertilizer to grow and re-grow the forage

established on the site in the paddocks or pastures. The

rotational grazing method is based on the theory that nutrients

from cow manure can be captured in the root zone and uptaken as

fertilizer for the plant upon which the cattle graze. The waste

from the barn area is collected in a waste storage pond or lagoon

and sprayed as liquid effluent on the grassy cover crops

established in the various pastures, as is the sludge or more

solid waste removed periodically from the waste storage lagoon.

3. The applicant, the 511 acres and the project itself

would use approximately 440 acres of that tract. The site is

approximately 6 miles south of the Santa Fe River. The majority

of the soil on the site consists of fine sand and clay-sand type

soils.

4. The dairy would contain approximately 850 cows. Lactating

cows (cows being milked) would be grazed in some 36 pastures divided

by fencing. They would be grazed in the pastures approximately 85

percent of the time and lactating cows would be in the milk and feed

barn located in the center of the lactating cow pastures

approximately 15 percent of the time. The manure from the barn,

approximately 15 percent of the total animal waste, would be

collected and placed in the collection lagoon for spray irrigation

on the forage crops grown in the pastures. The remaining 85 percent

of the waste would result from direct deposition on the pastures by

the cows. The rotational grazing dairy would contain permanent

watering troughs in each of the 36 pastures. This creates the

possibility of numerous "high intensity areas" or areas

characterized by a high level of cattle traffic. This circumstance

can result in denuding the cover crop or grasses around such water

trough areas which would result in a failure, for that area, of the

root-zone-uptake means of waste treatment of nitrates. In order to

minimize that eventuality, the cattle would be rotated on a frequent

basis from paddock to paddock in an effort to maintain nitrate

balance and maintain the sanctity of the cover crop, as would the

option of employing movable watering troughs so that areas of

denudment of the grass or forage cover can be avoided.

5. Manure would be flushed from the milking and feeding barn

with approximately 2,000 to 5,000 gallons of water after each

milking and at the end of each shift. Wastewater would then flow

into a sand trap or filter and thence through an underground

pipeline into an 80 foot x 84 foot concrete-lined storage lagoon.

The final site of the storage lagoon has not been firmly determined.

The site proposed in the application is located in part over a

depression which is a suspected karst feature or area that may be

subject to sink hole formation. Therefore, consideration should be

given locating the waste lagoon so as to avoid that depression and

the permit should be conditioned on installation of the lagoon so as

to avoid known karst features.

6. Effluent from the storage lagoon would be applied to

245 acres of pasture with a movable spray gun. The settled sludge

from the lagoon would be spread on the same land periodically.

7. The primary grass crop on the site intended for cattle

forage would be Coastal Bermuda grass. Coastal Bermuda grows

through a large part of the year and is normally dormant, in the

climate prevailing in the Gilchrist and Alachua County area, from

mid-October until early March. There would thus be little nutrient

uptake during that time but to off-set that dormant state rye,

wheat, rye grass, sorghum and other small grains could be grown on

the site during the winter months in order to continue the waste

treatment function of the cover crops.

MANAGEMENT PLAN

8. The Department currently does not have in effect a specific

rule requiring dairies in north Florida to obtain permits to

construct and operate per se, although such a rule does prevail for

dairies in the Okeechobee Basin in south Florida. Since 1990,

however, the Department has, by policy, required permits for new

dairy facilities in the Suwannee River Water Management District as

industrial waste water facilities. This policy is derived from the

general regulatory authority contained in Section 403.087, Florida

Statutes, and Chapter 62-670, Florida Administrative Code. 1 The

Department policy is described in a letter in evidence from the

Department to applicant Watson containing the required conditions on

any grant of the permit, to which the applicant has agreed. Those

requirements are as follows:

A. Management Plan

A site-specific plan, with design

calculations, providing for collection,

storage and disposal of all wastewater from

milking parlor and of runoff from the 25-year

24-hour storm event from all "high intensity"

areas within the dairy farm. The

calculations should include stormwater

computer model SCS TR-55 or similar.

Supporting documentation for the plan shall

include but not be limited to the following:

1. Water budget and balance, detailed and

itemized.

2. Nutrient budget, including wastewater and

solids management.

3. Crop management plan with projected crop

nutrient uptake rates.

4. Herd management plan, including locations

of barns, travel lanes, feed areas,

pastures, and management of dry cows and

heifers.

eatment and disposal system details,

construction details and methods, pumping

systems and capacities, irrigation system

details, lagoon design and capacity, and

site plans.

B. Ground Water Monitoring Plan

1. Determination of ground water depth,

variability and direction(s) of flow.

2. Topographic site plan which includes the

location of facility property boundaries,

sinkholes and cooling ponds.

3. Ground penetrating radar (GPR) if located

within Suwannee River Water Management

District.

4. Site borings for determination of soil

properties, depth and extent of low

permeability zones, and confirmation of

GPR results.

5. Proposed locations, construction, and

development criteria for monitor wells.

6. Inventory of potable wells within 1/2

mile of site.

7. Determination of current ground water

quality and compliance.

Such plan shall be prepared in accordance

with the standards of the USDA NRCS, at a

minimum, and shall include detailed

instructions for construction, operation, and

maintenance of wastewater/runoff collection,

storage and disposal systems. DEP Exhibit 1.

The various expert and fact witnesses for the Respondents

described in their testimony the constituency of that Management

Plan and the reasons, within their various scientific discipline

areas and their personal factual knowledge concerning why it

should be required for the site and project at issue.

9. The 850-cow herd which would be contained on the proposed

dairy consists of 550 lactating cows which are milked on a daily

basis but also contains 80 dry cows and 220 heifers. Thus some 300

cattle on the dairy will not be milked at any given time and

consequently will not contribute to use of the high intensity barn

area and the waste collected in the anaerobic lagoon to the extent

that those non-milking cattle are not fed and watered in the central

barn area. Their waste would more typically be deposited directly

on the pastures by those cattle themselves.

10 The project is proposed to provide for on-site containment

of all wastes generated by the dairy. There will be no discharge of

effluent or other pollutants from the dairy to "waters of the

state." The proposed permit requires that no surface water runoff

be permitted from the dairy site.

11. The anaerobic or waste collection lagoon is designed to

contain all effluent from the milking barn and other high intensity

cattle areas in the event of a 25-year, 24-hour storm occurrence.

Additionally, a safety factor of one-foot of "free-board" or

additional wall height on the anaerobic lagoon is to be provided as

an additional safety factor over and above the level expected to be

achieved by the above-referenced storm event. The adequacy of the

design capacity of the lagoon system is not in dispute.

12. The proposed project and design calls for four monitoring

wells to be located along the northern boundary of the property,

which is essentially co-extensive with the boundary of the discharge

zone at issue. There would be three compliance wells and one

background sampling well. The Department's expert geologist,

Mr. Davis, was of the belief that an intermediate monitoring well

would not be necessary since the four wells would in his view be

sufficient to enforce water quality standards. Those wells are

located down-gradient according to the known direction of the ground

water flow underneath the site, as required by Rule 62-522.600(6),

Florida Administrative Code. Although no intermediate wells are

provided for by the plan, they have been required at the other two

rotational grazing dairies already permitted by the Department in

the Suwannee River Water Management Region at least one of which was

within a mile of the outstanding Florida water of the Suwannee

River. Intermediate monitoring wells at other dairies have shown

increased levels of nitrate, although there is no evidence to show

that nitrate levels have exceeded state standards at the boundaries

of those dairies or their discharge zones. In any event, however,

the totality of the expert testimony demonstrates that intermediate

wells would provide an efficacious early warning system to predict

increases in nitrate contamination. Thus adjustments in the waste

and commercial fertilizer nitrate application could be made so that

prevention of violation of nitrate standards, by the time waste

water migrated to compliance wells around the boundary of the site,

could be effected. This would have a substantial predictive value

to avoid future nitrate contaminant violations before they occur and

they should be installed as a condition on permitting.

13. The proposed dairy design and operation involving

rotational grazing is undisputed to be more beneficial to

environmental water quality considerations than a traditional cattle

confinement type of dairy. The rotational grazing dairy is

characterized by cattle spending minimal time in high intensity

milking, feeding, and watering areas. Additionally, there will be a

significantly lower level of nutrient loading on the pastures with

little accumulation of effluent on the land surface. In fact, the

deposition of waste through spray irrigation and through the

urination and defecation of the cattle directly will still result in

a deficit in nitrates needed for adequate plant growth of the grass,

and other crop, ground cover necessary for feeding the cattle and

making the operation succeed in a waste treatment sense as well.

Consequently, it will have to be supplemented by the addition of

some commercial fertilizer, the costs of which will result in a

natural incentive for the farmer/applicant to ensure that the

nutrient loading on the pastures is at a low, environmentally

acceptable level in terms of potential contamination of ground

water. The proposed dairy has been demonstrated to be consistent

with the Natural Resources Conservation Services' requirements and

policies concerning dairies and rotational grazing dairies. It is

also undisputed that phosphorus is not of an environmental concern

with this application and project. There is sufficient iron and

aluminum coating on the soils involved so that excess phosphorus

will be retained on the site and it is undisputed that nitrogen is

the only limiting factor in the design of the dairy.

NITROGEN BALANCE

14. The specific concern with regard to the application and

the dairy operation is nitrate leaching below the root zone of the

crops grown on the surface of the dairy. The dairy is designed to

use nitrogen and nitrates by growing crops in the pastures which

will then be eaten by the dairy cows, so that the nitrogen is

re-cycled with the resulting animal wastes being used as fertilizer

for the same grass or crops which the cattle continuously graze. It

is anticipated that the amount of nitrogen produced by the dairy

cows will be insufficient to optimize that plant growth. Therefore,

additional fertilizer will be required to be applied to the land

surface in the pastures at times. The additional nitrogen

fertilizer will only be applied when testing of soil, and

particularly plant tissue analysis, which will be done a regular

basis, shows that application of commercial fertilizer is needed to

supplement the natural cattle-waste nitrogen.

15. Nitrogen is a concern because if too much of it is applied

to the land surface, it may leach below the plant root zone and

eventually migrate to ground water. Nitrogen in high concentrations

can be potentially harmful to human health, so state drinking water

standards have been established for nitrogen with regard to the

issuance of industrial waste water permits. The state drinking

water standard for nitrate is ten parts per million at the zone of

discharge, that is, the zone of discharge into the ground water

aquifer.

16. The dairy is designed in such a way that nitrate levels

will not exceed water quality standards. The design is determined

by reviewing nitrogen balances and making sure that excess nitrogen

will not leach past the root zone. The engineers evaluating and

designing the project for the applicant, and testifying concerning

it, arrived at a "mass balance" to estimate the nitrogen amounts on

the site. This mass balancing is required by the Department in the

required estimating of the pounds of nitrate leachate.

17. Nitrogen can be removed from the dairy operating system

through atmospheric losses or "volatilization" particularly from the

urine component of nitrogen application. It can be removed through

milk losses, whereby nitrogen is removed from the digestive system

of the cattle through its being bound up to some extent in the milk

produced by the cattle and sold off the dairy site, as well as some

minimal leaching of nitrate through the soil. The nitrogen that is

not removed by volatilization to the atmosphere (excluding the small

amount re-deposited by rainfall) will be cycled through the cows and

the crops along with any supplemental nitrogen applied from time to

time in order ensure optimal plant growth.

18. The mass balance, or amount of pounds of nitrate in the

leachate, was determined by considering the amount of water flowing

through the system. The re-charge rate was established by the

applicant's engineer Mr. Holloway to be 17 inches. This means that

there will be 17 inches of rainfall leaching below the root zone of

the cover crops to reach ground water. The re-charge rate can be

determined by computing the average of the evapo-transpiration and

average rainfall and subtracting the difference. It can also be

calculated by employing computer models such as the "GLEAMS" model.

Mr. Holloway, the applicants engineer, used both sources or methods

and reached the figure 17 inches. The GLEAMS model is a computer

model that uses local data to determine water budgeting and recharge

rates.

19. Mr. Holloway also used a 50 percent volatilization rate

for the nitrate losses when determining his mass balance. The

applicant's experts also considered the plant uptake rates and

concluded that the uptake rate would be between 500 and 700 pounds

of nitrogen uptaken per year, per acre, by the plant cover. In

order to be conservative and to install a sufficient safety factor

in the system to avoid overloading it with nitrates and endangering

ground water quality, they employed a lower uptake rate in their

calculations and recommendations to the applicant, and thus to the

Department, as to the amount of nitrogen applied per acre, per year,

from all sources to only be 400 pounds.

20. The conditions imposed by the Department in the

"free-form" consideration process and draft permit thus limits the

total pounds of nitrogen permissibly applied to this site to 400

pounds per acre, per year. Those 400 pounds of nitrogen are

represented by 260 pounds applied from manure from the livestock and

no more than 140 pounds applied from commercial fertilizers

purchased by the farmer, Mr. Watson. The 400 pounds of nitrogen per

acre, per year, as a condition on the permit is less than that

allowed at the other rotational grazing dairies previously designed

by Mr. Holloway and approved. Additionally, Mr. Cordova of the

Department established that there are no rotational grazing dairies

that have a higher nitrogen deficit than the Watson dairy. This

further provides a significant safety factor not present in other

approved dairies.

21. Atmospheric losses of nitrogen up to 80 percent have been

documented with similar dairy operations. Atmospheric losses can

occur through both volatilization and de-nitrification.

Volatilization is the process where nitrogen is removed from the

system by the ammonia in the waste products, changing into a gaseous

state and migrating into the atmosphere as a volatile gas.

De-nitrification is the process where microbes, principally in the

absence of oxygen (anaerobic) reduce nitrates to nitrogen gas and to

possibly N2O, which is a volatile, and then allow it to escape into

the atmosphere.

22. The applicant has agreed, as a condition to the permit, to

apply soil testing and crop tissue analysis as well as quarterly

reviewing of the monitoring wells before he determines to supplement

the natural fertilizer deposited from the animals with additional

commercially purchased fertilizer. The commercially purchased

fertilizer would represent a substantial investment in purchase

costs and in labor costs for its application. This is an additional

safety factor because the applicant clearly would not have an

interest in applying any more fertilizer than was absolutely needed

to secure optimum plant growth for grazing purposes and nitrogen

uptake or waste treatment purposes. This is a further method which

will prevent excessive nitrate nutrients from being deposited on the

site and possibly into the ground water.

23. Dr. Bottcher, an expert witness for the applicant,

testified that he expected nitrate levels at the zone of discharge

within the boundaries and beneath the surface of the dairy farm to

be between 4 and 6 parts per million. Mr. Holloway expected within

a reasonable degree of certainty that on a long term average, with

about 4,000 pounds of nitrate leaching below the root zone system,

that the concentration directly below the farm beneath the root zone

would be between 2 and 3 parts per million.

24. Indeed, the proposed operation would be similar to the

existing condition at the Watson farm involving grazing beef cattle

on a system of pastures, with row crop operations. Row crops

typically have a higher impact of nitrates than the proposed dairy

operation would have and beef cow grazing would have a similar

impact, although it would be slightly less. Thus the proposed

operation is similar in its nitrate impact to the existing

conditions at the site. Moreover, the applicant is limited by the

permit conditions already agreed to, to spray manure on the spray

field area at the rate of less than one half of an inch. The

spraying to that limitation would probably take from two to five

hours per week.

25. One of the important safety mechanisms in achieving a

nutrient balance on the dairy site and in its operation, so as to

ensure that ground water quality violations do not occur, is the

application rate of nitrate to the land surface. As shown by

Dr. Bottcher's testimony, the farmer may increase crop production by

applying more fertilizer during seasons of heavy growth of the plant

cover. The application rate can then be decreased when there is

less growth and, therefore, less need for nutrients to grow the

cover crops. A smaller application rate will increase the

volatilization rate by avoidance of the infiltration of the nitrate

bearing effluent into the soil through hydraulic action and through

the saturation mechanism, since a smaller amount of application

would tend to leave more of the effluent within less than one inch

of the land surface, or on the land surface, thereby allowing it to

be volatilized more readily. This circumstance will decrease the

amount of nutrient leaching below the root zone and thus prevent the

nitrates from being transmitted to the ground water.

26. A number of crops can be grown successfully and

appropriately on the site in order to provide the grazing forage

needed for the operation of the dairy. Examples, depending upon the

season of the year, are rye, wheat, grain sorghum, and various

grasses, including Coastal Bermuda grass. Coastal Bermuda is a

perennial grass, high in protein available for livestock and is

already established on the site. The various other crops can be

grown as well and some that grow in the winter months, such as rye,

will be grown by Mr. Watson. The growing of the various cover

forage crops are limited by the limitation in the permit which is

conditioned on maintaining a cover crop growth situation where the

average annual uptake is at least 400 pounds per acre (the evidence

reveals that in reality it would be more on the order of 500 to 700

pounds per acre, per year).

27. Dr. Pollman and Dr. Upchurch, expert witnesses for the

Petitioners, question the nitrogen balancing and leachate

predictions arrived at by the applicant's expert witnesses, as well

as those of the Department. Neither Drs. Pollman nor Upchurch had

any prior experience or expertise with testing for a nitrogen

balancing on rotational grazing dairies. Instead they utilized

various models to attempt to predict leachate amounts. Dr.

Pollman's modeling utilized formulas prepared by the applicant's

experts. His modeling showed a high percentage of the predicted

outcomes to be actually within regulatory standards for nitrates,

even though all of his estimates failed to take into account the

variable inclusion or application rate for nitrogen through

commercial fertilizer which will only be applied on an as needed

basis after appropriate plant tissue and soil tests show that

commercial fertilizer should be applied. Likewise, Dr. Upchurch's

modeling results were also mostly within acceptable standards for

nitrate concentrations unless one assumes that the nitrogen

application rates exceed the amounts allowed under the permit, which

will not be the case in reality because obviously the permit limits

must be complied with. Dr. Upchurch also utilized a model, " NLEAP,"

which was neither designed nor calibrated to be used for predictive

capabilities and is still considered experimental by the NRCS.

WASTE LAGOON

28. The applicant proposes to construct a waste storage lagoon

designed to hold seven days' waste water generation capacity or

26,000 gallons per day. In addition to that required storage for a

25-year, 24-hour storm event, an additional safety factor of one

foot of free board has been designed into the lagoon system. The

lagoon will be constructed with 6 inch thick, fiber-reinforced

concrete. No evidence was offered by the Petitioners that the

lagoon design itself was faulty or inappropriate, rather the

Petitioners contend that there is a chance that a surface failure

beneath the lagoon, by the result of a sink hole developing,

particularly in the present preliminary location proposed for the

lagoon, could cause the lagoon to crack. The applicant will,

however, in order to ensure that the area is suitable for the lagoon

have the appropriate engineer "over-excavate" the site in order to

minimize the change of a sink hole developing. Additionally, soil

borings will be done beneath the surface to provide additional

assurance that the lagoon will not fail due to voids or sink holes

being present beneath it. Because the lagoon is presently

preliminarily located in an area that appears to embody an old,

inactive karst depression, consideration should be given to altering

the site of the lagoon slightly so as to avoid this area, after soil

borings and other investigation is done to ascertain whether the

area poses a risk of lagoon failure. Additionally it must be

pointed out that because the applicant would need to expend a

substantial investment to rebuild the lagoon in the event of such a

failure, he has a strong incentive to locate the most suitable

geological placement for the lagoon in any event.

GEOLOGIC SITE CHARACTERISTICS

29. It is undisputed that the geology underlying the surface

of the dairy site is karst in nature: that is, it is characterized

by a sub- strate of limestone which can, through the dissolution

process caused by percolating water, be susceptible to fissures,

voids, underground conduits and sink holes. This, however, is true

for essentially all areas used for agriculture in the Suwannee River

Area Water Management District, the area to which the subject above-

referenced policy concerning installation and permitting of dairies

applies. Because of the karst nature of the area, sink holes and

other potential surface openings to the ground water could occur at

the site. It is most significant, however, that both Mr. Holloway's

and Dr. Kwader's testimony established that the soil layer at the

site was more than sufficient to protect the ground water. In fact,

the soil layer averages from 45 to 50-feet thick over the underlying

limestone sub- strate of the Ocala Formation. Further, the proposed

permit and its conditions would require a management plan which,

with the conditions already placed on the permit and recommended

herein, will adequately deal with the possibility of sink holes,

"pipes" or "chimneys" developing on the site.

30. The dairy design success is derived essentially from the

sufficient nutrient uptake in the root zone of the plant cover,

balanced with careful control of the application rates of both the

natural fertilizer from the cows and the commercial fertilizer which

will supplement it from time to time. Any possibility that the

treatment zone for nitrates associated with the plant root zone

would be by-passed by the effluent as a result of sink holes or

other types of fissures developing can be resolved by proper

management practices, which the conditions proposed for the permit

and those recommended herein will insure are implemented. For

instance, if sink holes, other depressions or holes develop in the

site, they will be filled with soil to a depth of five feet, with an

impervious clay cap on top of that and then a layer of top soil to

allow for re-establishment of the root zone on the surface. The

permit should be so conditioned. Moreover, if sink holes or other

voids develop that are too large to be so filled and pose a risk of

migration of effluent below the root zone to rapidly to the ground

water, they will be fenced off and cows will not be allowed in the

area. The area will be removed from the irrigation application

process until repairs are made, under the presently proposed

conditions on the permit. An additional condition should be imposed

whereby any sink holes or other voids or similar breaks in the

ground surface which pose a risk of effluent rapidly migrating to

ground water should be bermed around the circumference to prevent

effluent or stormwater laden with nitrates from the land surface

from entering the fault or cavity.

31. The applicant is required under the proposed conditions on

the permit to report to DEP any sink holes which develop within a

certain period of time in the barn area. Cows are not to be

permitted to enter into any of the sink hole areas by additional

fencing, if necessary. If sink holes develop in the spray field

there can be no discharges of fertilizer or irrigation on those

areas until the sink holes have been repaired in the manner

referenced above.

32. The phosphate pits on the site will also be fenced to

prevent discharges past the root zone potentially caused by cattle

entering the pits. Additionally, berms are required to be

constructed around the phosphate pits to prevent surface water from

storm events or other means by which nitrates from the ground

surface can be transported into the pits and then possibly to ground

water. Any holes which may develop, also called "piping failures,"

around the periphery of the phosphate pits should be treated in a

similar manner to prevent the migration of surface water into those

holes whether or not they communicate with the phosphate pits

themselves by fencing and berming. These arrangements coupled with

the fact that the phosphate pits are characterized by a sufficient

soil layer in the bottom of the pits between the bottom surface of

the pits and the water table or aquifer will constitute reasonable

assurance that the pits will not result in a conduit or path for

nitrate-laden, surface water to migrate past the root zone directly

into the ground water aquifer.

33. Mr. Holloway, an engineer, testifying for the applicant

conducted soil borings on the site to verify the Natural Resources

Conservation Service (NRCS) surveys as accurate and to ensure that

an adequate root zone for treatment purposes existed. Additionally,

the NRCS did a ground penetrating radar survey or study on the

property.

34. The Petitioners also did a separate ground penetrating

radar study performed by Mr. Windschauer. The Petitioners study

identified a number of karst-type "anomalies" on the property. The

number of anomalies located by Windschauer was not unusual for a

such a karst geologic area, but, in any event, all of them had

adequate soil depth to support the crops necessary to establish the

root zone and maintain the nitrogen balancing. Soil borings were

conducted, as well on four of the anomalies, under Dr. Upchurch's

supervision. They confirmed that there was adequate soil depth to

support crops and protect groundwater. The conditions already

imposed on the permit to which the applicant has agreed, require a

minimum of five feet of soil depth to ensure adequate treatment

including the soil below the root zone and that soil depth and plant

cover will have to be maintained even if repairs are necessary to

karst anomalies or "sink holes," or the dairy will have to cease

operation.

35. The soil depth on the dairy is approximately 45-50 feet

and the water table is approximately 55 feet below the ground

surface. While the Department's expert, Mr. Davis, is satisfied

that the location of the monitoring wells and the number of wells

are adequate to monitor compliance with water quality standards for

groundwater at the site, the draft permit conditions allow for a

change in the number and the location of the monitoring wells. The

evidence in the case, including that which shows that an

intermediate well at another similar dairy site has shown elevated

nitrate levels (although it has not been shown that other conditions

are similar to those proposed in this permit application and in the

evidence) would indicate that it would be prudent to install

intermediate monitoring wells, upgradient, within the dairy site to

serve as an early warning, predictive mechanism to avoid water

quality violations at the boundary of the zone of discharge. This

will allow time for steps to be taken, through various adjustments

in the operation, to prevent any violations of the ten parts per

million nitrate groundwater standard. The permit is recommended to

be so conditioned.

36. Dr. Kwader performed a photolinear trace analysis. He

indicated that he did not find any particular linear features such

as fractures. A fracture in the limestone stratum is significant in

that it can provide a conduit or preferential pathway through the

sub-surface rock and thus transfer contaminants from one point to

another at a more rapid rate than simple percolation through soil

and pores in the rocks. This could result in excessive nitrates

being deposited in the groundwater aquifer before an adequate

treatment time and mechanism has had its effect on the nitrates. A

fracture or conduit flow will, however, cause dilution and Mr.

Davis, for the Department, testified that he did not expect a higher

concentration of nutrients in a fracture than in the surrounding

rock. Additionally, there will be substantial dilution once the

nutrients reach the aquifer and begin moving laterally. The

dilution will be proportional to the water moving through the

conduit, meaning that if the fracture is relatively large, then the

concentration of nutrients will be proportionately smaller because

of the higher volume of water.

37. Such linear features or fractures are difficult to observe

through 50 or more feet of soil existing at the site above the rock

stratum and the top surface of the aquifer. Dr. Upchurch, for the

Petitioners, also performed a photolinear trace analysis and

identified two areas as being highly probable, in his belief, for

linear fracture features beneath the farm and surrounding area. He

believes there is a possibility of a number of other fractures

beneath the Watson property, although the evidence does not

definitely identify such nor the measures or precise locations of

any such postulated fractures. The Watson property, however, is not

unlike any of the surrounding karst terrain with respect to such

potential linear fracture features and, in fact, much of north

Florida can be so characterized. Moreover, Dr. Upchurch himself

agreed that only a limited area of the Watson farm would be impacted

by such features, and further, if they are present, they will not

impact the nutrient balance aspect of the dairy design because it

will perform above many feet of soils separating it from the

fractures, if they exist.

38. Limestone pinnacles protruding to the land surface can

provide preferential pathways for water to migrate downward to the

groundwater aquifer in a manner similar to that posed by a sink

hole. They can also function as a break in the soil and plant root

zone covering the spray effluent treatment area if allowed to remain

exposed. Limestone was observed within one of the mine pits and in

a sink hole. It is not clear whether it is a pinnacle which leads

down to the sub- strate containing the aquifer or is merely a remnant

boulder. In any event, these pinnacles or limestone outcroppings or

boulders, whatever they prove to be, will not result in a

preferential pathway for water to migrate to the aquifer because the

management plan conditioning the permit requires that any limestone

protruding to the surface be sheared off and replaced with top soil

and vegetation. The permit conditions require that at least five

feet of soil overlaid by vegetation must be present for all areas in

the spray field.

39. No exposed groundwater was observed in any of the sink

holes. In fact the aquifer water level would be at least ten to

twenty feet below the bottom of any pit or sink hole observed on the

property. An additional 50-foot buffer from the property boundary

surrounds all of the paddocks, providing an additional safety factor

before the outside boundary of the zone of discharge is reached.

40. The proposed dairy is located approximately six miles

south of the Sante Fe River at its nearest point. The Sante Fe

River is an outstanding Florida waterway in accordance with Rule

62-302.700(9)(i)27, Florida Administrative Code. The dairy site is

not within the flood plain of the river and there will be no surface

water discharged from the dairy, including none to the Sante Fe

River. Any impact the dairy might have on a water quality in the

Sante Fe River would come from groundwater flowing from the site to

river. Groundwater beneath the dairy site flows first in a

northeasterly direction thence apparently swinging more northerly in

the direction of the river, more or less in a "banana shape" flow

pattern and direction.

41. Current permitting requirements for such a dairy require

that the groundwater leaving or flowing from the zone of discharge

must meet "drinking water standards." Those standards are codified

in Rules 62-520.400 and 62-522.400, Florida Administrative Code.

Those standards require that nitrates not exceed the standard or

level of ten parts per million. Dr. Bottcher's expert opinion,

which is accepted, is that the dairy design and operation will

provide adequate protection to the Sante Fe River with that

perameter in mind. He also established that reasonable assurances

exist that the river will be adequately protected and not

significantly be degraded alone or in combination with other

stationary installations in addition to the dairy in question.

42. The dairy waste management system has been established by

preponderant evidence to abate and prevent pollution of the

groundwater to the extent required by the applicable statutes, rules

and policies, in that water or pollution will not be discharged from

the dairy in violation of the above-referenced standard. Especially

because of the great thickness of soil cover and because of the

conditions and protective measures designed into the draft permit,

and the project and recommended as conditions herein, in order to

prevent effluent from bypassing the root zone treatment area due to

karst features the preponderant, credible geological and hydro-

geological evidence, including that of Mr. Davis, shows, within a

reasonable degree of professional certainty, that there are not

conditions concerning the hydro-geology or geology in the area of

the site as to make it unsuitable for the proposed dairy operation

in the manner conditioned and recommended herein.

SECTION 120.57(1)(E) - FINDINGS

43. The specific permitting requirements for the rotational

grazing dairy at issue are embodied in a policy followed by the

Department as far back as 1990. Those requirements are not

contained in a Department rule. Rather, the policy is presumably

enacted pursuant to the statute referenced by the parties, including

the Department, in this case as the general pollution abatement

statute, Section 403.087, Florida Statutes. The action of the

Department in announcing its intent to grant the permit may be

deemed an agency action "that determines the substantial interest of

a party and that it is based on an un-adopted rule . . ." to the

extent that one might deem this policy, consistently followed in a

substantial area of the state since 1990, an un-adopted rule for

purposes of Section 120.57(e)(1), Florida Statutes. In that

context, the agency must demonstrate that the un-adopted rule

comports with the statutory definitional of characteristics of a

valid rule. Thus the agency must present proof that its un-adopted

rule or "policy" would be valid as a rule. In that context the

evidence adduced by the Department and indeed by both Respondents,

since they presented a joint case, shows that the policy at issue is

within the powers, functions and duties delegated by the legislature

in Section 403.087,Florida Statutes, which is a generalized grant of

authority designed to give the Department the power to regulate in a

way to abate the pollution of waters of the state, including

groundwater.

44. It has also been adequately shown that the policy or un-

adopted rule does not enlarge, modify or contravene the specific

provisions of that law being implemented but rather provides

sufficient regulatory details so that the general principals, stated

in that statute, can be carried out in terms of the installation,

regulation and operation of the subject dairy project. It has been

adequately proven that the rule is not vague and that it establishes

adequate standards for agency decisions on whether or not to permit

such a rotational grazing dairy.

45. It does not vest unbridled discretion in the agency nor

constitute an arbitrary or capricious act or policy imposition,

because the standards and requirements advanced by the Department as

being necessary under this policy or un-adopted rule, for a permit

to be granted, must, of legal and factual necessity, be predicated

on competent, scientific expert and factual evidence. That has been

shown, which likewise meets the requirement that the un-adopted rule

be supported by competent and substantial evidence.

46. Likewise, the evidence shows that under the circumstances,

given the great public necessity in protection of the groundwater

and the Floridian aquifer, that the requirements placed upon a grant

of a permit for this project and the conditions placed upon its

construction and operation do not impose, under the circumstances,

excessive regulatory costs on the regulated person, Mr. Watson, or

the governmental entity where the project is located, in other

words, Gilchrist County.

CONCLUSIONS OF LAW

The Division of Administrative Hearings has jurisdiction of

the subject matter of and the parties to this proceeding pursuant

to Section 120.57(1), Florida Statutes.

47. The Department has met its burden to demonstrate the

validity of its policy to the extent it may be deemed an

"un-adopted rule" in accordance with Section 120.57(1)(e),

Florida Statutes.

48. The Petitioner-in-Intervention, Gilchrist County, was

dismissed from the proceeding because it did not plead nor prove

any injury-in-fact and because the interest it sought to protect

is that general interest in clean water which is no more than

that all members of the public have and which is within the

police power of the DEP, under the mandate of Chapter 403,

Florida Statutes.

49. The applicant has the ultimate burden of pr oof in

demonstrating entitlement to the permit sought. Department of

Transportation v. J.W.C., Company, Inc. , 396 So. 2d 778 (Fla. 1st

DCA 1981). The applicant has the burden of providing reasonable

assurance that the proposed project will not violate Department

standards, that the proposed dairy will abate and prevent water

pollution to the extent required by Department rules and policies

and that the project will not discharge or cause pollution in

violation of relevant statutes, rules and policies. Rule 62-

4.070, Florida Administrative Code, and Rule 62-4.030, Florida

Administrative Code.

50. The applicants burden is one of "reasonable assurances,

not absolute guarantees." See Manasota-88, Inc., v. Agrico

Chemical , 12 F.A.L.R. 1319, 1325 (DER 1990). Reasonable

assurance must deal with reasonably foreseeable contingencies.

The necessary reasonable assurance in a particular case that a

proposed project will comply with relevant air and water quality

standards is a mixed question of law and fact. See Sierra Club,

et al. v. Department of Environmental Protection, et al. ,

18 F.A.L.R . 2257, 2260 (Fla. DEP 1996); Save Our Suwannee, Inc.,

v. Pechocki and Department of Environmental Protection ,

18 F.A.L.R. 1467, 1471 (Fla. DEP 1996).

51. Once an applicant has presented evidence and made a

preliminary showing of reasonable assurance, a challenger must

present "contrary evidence of equivalent quality" to that

presented by the permit applicant. J.W.C. , 396 So. 2d at 789.

Simply raising "concerns" or even informed speculation about what

"might occur" with regard to the water in the aquifer and in the

Sante Fe River and its attendant springs is not enough to carry

the Petitioners' burden. See Chipola Basin Protective Group,

Inc., vs Florida Department of Environmental Protection ,

11 F.A.L.R. 467, 480-81 (DER 1988). In other words, for

instance, even though the scientific evidence adduced by the

Petitioners shows that there is a possibility of fissures,

fractures and sand pipes and other sub- strate anomalies, which

might serve as conduits for percolating water to reach the

aquifer before it has had a chance to have the nitrates removed

or treated adequately, does not overcome the applicant's showing

of reasonable assurances. Some of that evidence may be deemed to

be of "equivalent quality" in terms of the scientific

investigation and study involved, in terms of the way the

investigation by the Petitioners' experts were performed (aside

from the criticisms embodied in the above Findings of Fact).

Even so, the result they produced still lies, in large part, in

the area of informed speculation or conjecture as to the pathways

any fractures other anomalies in the might represent for the

water traveling through the aquifer in the direction of the Sante

Fe River, if indeed it does so. If, in fact, the water would

migrate from the dairy farm in question ultimately to the

Sante Fe River, it was not shown, as to any future sampling or

projection of nitrate content in the river how, in this body of

evidence, it could be determined that the feared nitrate levels

in the river in the future would come from the farm or would be

attributable to the subject dairy farm operation, as opposed to

some other source.

52. It is difficult to see how such theories and

postulations about the fractures and other suspected, although

not definitively proven, pathways for the groundwater from the

farm in a northerly and then a northeasterly flow direction

toward the river might constitute structures which would prevent

adequate dilution of the effluent water and would also transport

it to the aquifer and to the waters of the river before adequate

treatment and abatement of the nitrate pollution potential had

occurred. There is great difficulty in establishing such facts

about suspected, but not proven, structures beneath 50 feet of

soil with the only tools being theoretical models and the ground

penetrating radar, with all its frailties. Other potential

methods of ascertaining the flow rate and pathway the water takes

through the aquifer, such as "dye tracing" studies, were not

suggested in the evidence. Thus, while the evidence in terms of

scientific evidence of "equivalent quality" might have been

adduced, it was not shown in a preponderant way to be "contrary

evidence" in terms of being preponderant over that adduced by the

applicant's and the Department's witnesses and documentary

evidence.

53. Although, by policy, Chapter 403.087, Florida Statutes,

provides authority for the permitting process, there is no

specific rule that requires a dairy in north Florida to obtain a

permit to construct and operate that dairy (contrary to the rule

prevailing in a similar context for the Okeechobee Basin in south

Florida). Since 1990, however, the Department has, by policy,

adopted pursuant to Section 403.087, Florida Statutes, required a

permit for new dairy facilities in the Suwannee River Water

Management District. See Desmond v. Pioneer Farms (E.T. Usher)

and Department of Environmental Protection , 17 F.A.L.R. 2903

(Fla. DEP 1995); Save Our Suwannee Inc. , supra .

54. Moreover, in terms of waste water discharge regulation,

Chapter 403.087, Florida Statutes, is also implemented by Rule

Chapters 62-4, 62-302, 62-520, 62-522, and 62-660, Florida

Administrative Code. In terms of proof with competent,

substantial evidence of the appropriateness and factual and legal

effiacy of this policy and in terms of proof of its compliance

with the provisions of Section 120.57(1)(e), Florida Statutes, as

delineated in the above Findings of Fact, if the policy is deemed

an "un-adopted rule", the Department has met its burden of proof

alluded to in Section 120.57(1)(e), Florida Statutes.

55. Rule 62-522.410, Florida Administrative Code, allows

the establishment of a zone of discharge around a groundwater

discharge site. The "zone of discharge" is the area underlying a

site wherein there is opportunity for treatment, mixture or

dispersion of waste into the aquifer. See also

Rule 62-520.200(23), Florida Administrative Code.

56. Rule 62-522.300(5 ), Florida Administrative Code,

establishes that the number of groundwater monitoring wells on a

proposed dairy site shall be minimized, consistent with the

ability to obtain useful and reliable information. The above

conditions, however, given the nature of the site and the

subterranean geology at the site, dictates that intermediate

monitoring wells be installed as an additional safety feature and

early warning system for potential groundwater pollution

violations.

57. Rule 62-4.242, Florida Administra tive Code, relates to

permits where proposed activity or discharge is within an

outstanding Florida water or might significantly degrade an

outstanding Florida water. It is inapplicable to this proceeding

because the proposed dairy is not within an outstanding Florida

water and does not significantly degrade either by itself, or in

combination with other activities, any outstanding Florida water.

Moreover, the Petitioners did not raise this issue in their

pleadings and it was not shown as an issue in the pretrial

statement. The Petitioners introduced no preponderant persuasive

evidence of potential degradation of the outstanding Florida

water, the Sante Fe River, by the proposed dairy. It has not

been demonstrated by preponderant, persuasive evidence that even

if the groundwater flowing from the site beneath the dairy is

ultimately deposited in the Sante Fe River that that event given

the conditions on the permit and the manner and method of

treatment of nitrates at the dairy, will cause any degradation of

the outstanding Florida water, the Sante Fe River. Even if the

scientific evidence adduced by the Petitioners concerning flow of

water and potential fractures in the stratum beneath the dairy

established that the water percolating through the soil beneath,

the dairy to the aquifer would ultimately flow into the river,

the Petitioners' evidence really does not rise beyond the level

of concern or informed speculation concerning potential

degradation of that outstanding Florida water and does not

overcome the counter-countervailing evidence adduced by the

applicant that the permitting conditions and the physical

circumstances of the dairy site, including the substantial

overlying soil layer, which demonstrates that the dairy operation

will not cause degradation of receiving state waters in violation

of the relevant perameters referenced herein.

58. The applicant has provided reasonable assurances of

compliance with the Department rules, regulations and policies

governing performance and operation of the proposed dairy and

that the proposed dairy will comply with the Department's

groundwater quality standards and minimum criteria. Reasonable

assurances have been provided that the dairy operation will not

violate DEP rules nor the draft permit conditions governing the

proposed zone of discharge for the dairy. It has also been

demonstrated that the Department has complied with the relevant

rules, statutes and its own policy regarding issuance of the

proposed permit in terms of the conditions it has sought to

impose on issuance of that permit. The applicant has provided

reasonable assurance that the project will comply with effluent

guidelines of the Department for such dairy operations pursuant

to the Department's rules and policy governing such industrial

waste water facilities. The applicant has provided sufficient,

persuasive, preponderant evidence concerning specific site

conditions so as to show reasonable assurance that the

groundwater beyond the proposed zone of discharge will not be

contaminated in excess of relevant standards and criteria and

that the water quality of the G2 Aquifer beneath the site will

not be reduced.

59. In summary the applicant has provided "reasonable

assurances" that the project as proposed to be constructed and

operated will not violate the relevant statutes, rules and

policies of the Department germane to such an industrial waste

water facility if the conditions imposed by the Department's

position on the grant of the permit and those conditions

recommended to be adopted and followed in this Recommended Order

are adopted, adhered to and complied with. This applicant's

reasonable assurances showing has not been overcome by

countervailing evidence of equivalent quality adduced by the

Petitioners. Accordingly, under these circumstances and with the

imposition of the conditions imposed in the Department's draft

permit and agreed to by the applicant and also including the

additional conditions recommended to be adopted in this

Recommended Order, the permit should be granted.

RECOMMENDATION

Having considered the foregoing Findings of Fact,

Conclusions of Law, the evidence of record, the candor and

demeanor of the witnesses and the pleadings and arguments of the

parties, it is

RECOMMENDED:

That a Final Order be entered granting the permit requested

by Craig Watson to construct and operate the proposed dairy waste

management system in accordance with the draft permit proposed by

the Department, including the general and specific conditions

attached and incorporated therein and also including the general

and specific conditions recommended to be adopted and implemented

for the proposed system in this Recommended Order, based upon the

preponderant, persuasive, credible evidence.

DONE AND ENTERED this 23rd day of February, 1999, in

Tallahassee, Leon County, Florida.

P. MICHAEL RUFF

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Talla hassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 23rd day of February, 1999.

ENDNOTE

1 / See Desmond v Pioneer Farms ( E.T. Usher) and Department of

Environmental Protection , 17 FALR 2903 (DEP); Save our Suwannee,

Inc., v Robert Piechoki and Department of Environmental Protection ,

18 FALR 1467 (DEP).

COPIES FURNISHED:

Patrice Boyles, Esquire

Post Office Box 1424

Gainesville, Florida 32601

E. Gary Early, Esquire

216 South Monroe Street, Suite 200

Tallahassee, Florida 32301

Robert Livingston, IV, Esquire

Post Office Box 2877

Gainesville, Florida 32602

Peter Belmont, Esquire

102 Fareham Place North

St. Petersburg, Florida 33701

T. Andrew Zodrow, Esquire

Department of Environmental Protection

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Marty Smith, Esquire

Post Office Box 2120

Ocala, Florida 34478

Samuel Mutch, Esquire

726 Northwest 8th Avenue

Gainesville, Florida 32601

Perry Odom, General Counsel

Department of Environmental Protection

Douglas Building, Mail Station 35

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this recommended order. Any exceptions to

this recommended order should be filed with the agency that will

issue the final order in this case.